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Why Physicians Should Exercise Great Caution before Accepting an Expert Witness Offer

Expert WitnessPlaintiff attorneys as well as defense attorneys retain expert medical witnesses who help them determine the merits of a personal injury or medical malpractice lawsuit. They perform a detailed medical records review to understand the treatment provided and whether there has been a breach of the standard of care. Expert witnesses help attorneys to determine whether the defendant physician had a duty to treat the patient, what the damages are and whether those damages are due to the defendant’s actions or lack of action. A physician in the same field as the defendant is considered most qualified to determine whether the defendant met the standard of care. Expert testimony should be scientifically sound and unbiased.

Prospective expert witnesses providing medical review service should be aware that increased legal scrutiny is being applied to medical malpractice litigation. Earlier, expert witnesses were ensured absolute immunity from civil litigation regarding their testimony. However, now expert witnesses could find themselves being subjected to disciplinary sanctions from professional organizations and state medical boards.

A recent case is that of Dr. Richard Dellerson, one of South Florida’s foremost experts in emergency medicine. Dr. Dellerson used to provide service as an expert witness in medical malpractice lawsuits. In 2013, he nearly lost his license and was barred from testifying as an expert witness ever again after the Florida Board of Medicine found that he had made “misleading, deceptive or fraudulent” statements in two separate malpractice cases by exaggerating his medical credentials. This June, a Pinellas County judge found that he had not met the legal requirement to be an expert witness in a 2009 case filed by a patient’s family against an emergency room doctor at St. Anthony’s Hospital in St. Petersburg. According to Dr. Dellerson, it was indeed a mistake on his part not to ensure that he met the legal requirements for testifying as an expert witness. He was careless in not reading them thoroughly.

Before filing a lawsuit against a doctor or hospital for malpractice and negligence in Florida, patients are required by law to hire a licensed physician to review their medical records and to provide a sworn statement that the patient’s attending doctor/hospital staff failed to meet the standard of care. Expert witnesses can testify in medical mal cases only if they have practised in the same specialty as the defendant doctor. In malpractice cases involving ER doctors, the expert witness must have worked with patients in a hospital ER within the five years prior to testifying or signing a sworn statement in a malpractice case. Many doctors have complained about fellow physicians who give false testimony against their peers.

Dr. Dellerson has an excellent reputation. He was chief of emergency medicine for Memorial Regional Hospital and helped to establish Broward County’s trauma network in the early 1990s. He has also served as medical director for the Hollywood fire department, a position that he still holds for Pembroke Pines. He has been practising medicine in South Florida since 1967 and has worked as an ER doctor at several South Florida hospitals.

So what was the mistake or oversight he made? Dr. Dellerson says that he was led to believe, based on the opinion of a lawyer that his experience at Miami Children’s Hospital, even though it was a pediatric hospital, was adequate to conform to the standard. He had worked at Miami Children’s Hospital from 2001 to 2006. But his last ER shift was in late 2001 at Broward General Hospital. The Pinellas County Circuit Judge found that Dr. Dellerson did not treat patients in the ER and that the pediatric environment in Miami was not similar to the ER at St. Anthony’s Hospital.

Expert WitnessWil Florin, the trial attorney who had hired Dr. Dellerson as an expert witness in this malpractice case against Dr. Scott Plantz intends to appeal the Pinellas County Circuit judge’s ruling.

  • He asserts that Dr. Dellerson met the statutory requirement to be an expert witness in the Plantz case as well as in the ten other medical malpractice lawsuits in which Dr. Plantz has accused Dellerson of fraud.
  • He points out that the judge relied on the wrong statute and that Florida law does not require Dellerson to have worked “an active shift” in a hospital ER during the 5 years prior to acting as expert witness in the Plantz case.
  • Moreover, Dellerson’s experience working for the Miami Children’s Hospital would qualify him as an expert witness.
  • Each of the doctors sued in the other 10 malpractice cases wherein Dellerson acted as an expert witness were represented by defense attorneys and they all settled out of court. Florin says that those lawyers didn’t think there was a problem with Dellerson’s qualifications. They settled because Dellerson was qualified.

Dr. Dellerson feels he has been victimized. He has always been at the forefront of tort reform, and working to get rid of doctors who testified just to get paid. Therefore he is angry and upset at the accusation that he defrauded his fellow physicians.

Many expert witnesses providing medical review service feel gratified that they helped a patient or a physician. However, they should remember that they are subject to the code of ethics set forth by the medical society and the state board of registration in medicine. Any sworn testimony they provide is discoverable. Moreover, attorneys on the other side and others may believe that the expert witness physician has contradicted himself/herself when he/she gives opinion on the same subject in more than one case. Typically, expert witnesses are reputable physicians in their own specialties and are given due respect and regard by the judicial system. However, it is important for these experts to think carefully before accepting the offer, and clearly understand what is being asked of them.

About Rajeev Rajagopal

Rajeev Rajagopal

Manages the day-to-day operations of MOS from NY. With an interest in information technology, I have guided MOS to extensive use of digital technology and the internet that benefits MOS as well as MOS clients.